Dagangan Petroleum Setia v Y C H Sdn Bhd (WA-22NCC-551-10/2022)

YCH SDN BHD

CHAN WAI HONG

CHAN WAI CHEONG (NRIC NO.: 721228-08-5443) … DEFENDANTS GROUNDS OF JUDGMENT Introduction [1] Enclosure (“Enc.”) 15 is the Plaintiff’s application for summary judgment pursuant to Order 14 of the Rules of Court 2012 (“ROC 2012”) against the 2nd and 3rd Defendants. Background [2] The Plaintiff is in the business of selling fuel, oil and other related products. S/N SlZ7QyrcBUKkeavsTZw56g [3] By a credit application dated 22.08.2018, the 2nd and 3rd Defendants, as Directors of the 1st Defendant, applied to the Plaintiff, and the Plaintiff agreed to sell, supply and deliver goods to the 1st Defendant on credit basis. [4] It was a term of supply that the Plaintiff is entitled to impose interest at the rate of 1.5% per month on all outstanding sums due and owing in respect of the supply. This rate of interest was set out in Clause 11 (b) of the credit application form signed by both the 2nd and 3rd Defendant. [5] In consideration of the Plaintiff agreeing to provide and/or continue the said supply of goods on credit to the 1st Defendant, the 2nd and 3rd Defendants executed a letter of guarantee and indemnity dated 22.08.2018 in favour of the Plaintiff wherein the 2nd and 3rd Defendants jointly and/or severally guaranteed the repayment of all debts owed by the 1st Defendant to the Plaintiff as principal debtors and not merely as sureties together with interest and legal charges and expenses which the Plaintiff may incur in enforcing payment of the outstanding sum owed by the 1st Defendant ("the guarantee"). [6] As at 25.06.2022, there was a sum of RM2,103,746.00 due and owing to the Plaintiff. The issued through its solicitors, a demand dated 25.7.2022 to all the Defendants (“the 1st letter of demand”). Consequent thereto, the 1st Defendant made 3-part payments on 5.8.2022 of RM782,308.80 and on 5.9.22 and 28.9.22 a sum of RM 19,874.40 and RM19,656.00 respectively leaving a sum of RM1,364,462.00 as shown in the statement of accounts at exhibit P-5 still owing to the Plaintiff, particulars whereof are as follows: S/N SlZ7QyrcBUKkeavsTZw56g Date Invoice No.

Amount outstanding

15.03.2022

2.

21.03.2022

21.03.2022

16.03.2022

5.

22.03.2022

22.03.2022

28.03.2022

8.

29.03.2022

9.

31.03.2022

10.

05.04.2022

07.04.2022

12.

08.04.2022

12.04.2022

13.04.2022

20.04.2022

20.04.2022

20.04.2022

25.04.2022

19.

27.04.2022

20.

28.04.2022

21.

09.05.2022

22.

11.05.2022

23.

11.05.2022

24.

12.05.2022

25.

17.05.2022

26.

18.05.2022

27.

23.05.2022

23.05.2022

29.

27.05.2022

27.05.2022

25.05.2022

30.05.2022

30.05.2022

09.09.2022 S15830 RM 43,024.80 -------------------------- TOTAL RM1,364,462.00 ------------------------- [7] The Plaintiff through its solicitors, again by letter dated 21.10.22 demanded from the 2nd and 3rd Defendants the balance outstanding amount of RM1,364,462.00. [8] Due to non-payment, the Plaintiff issued a debit note No: SD0012 dated 27.10.2022 to the 1st Defendant amounting to RM80,321.25 being interest due at the agreed rate of 1.5% per month as at 27.10.2022. [9] No payment was made, and hence this action was filed by the Plaintiff to claim a sum of RM1,364,462.00 together with interest of RM80,321.25 as at 27.10.2022 against the Defendants for goods sold and delivered to the 1st Defendant. The Defendants’ case [10] In resisting summary judgment, the 2nd and 3rd Defendants contended that the Plaintiff must first establish its claim against the 1st Defendant for the purported debt before they as guarantors can be made liable. It was postulated that the Plaintiff has failed to establish a debt against the 1st Defendant as a Restraining Order has been granted by in Kuala Lumpur High Court Originating S/N SlZ7QyrcBUKkeavsTZw56g Summons No.: WA-24NCC-995-11/2022 to, among others, restrain all civil proceedings against the 1st Defendant, to allow the 1st Defendant an opportunity to achieve a scheme of arrangement in respect of the debts asserted against it by its creditors. [11] The 2nd and 3rd Defendants’ narrative on triable issues are:

11.1 The 1st Defendant was engaged as a sub-contractor by Menang Idaman Sdn Bhd (“Menang Idaman”) to carry out works to build new roadways from “Gua Musang” to “Kampung Relong" and from “Kampung Seberang Jelai” to “Kampung Relong” (the “Projects”).

11.2 From December 2020 to September 2022, the 1st Defendant purchased, among others, industrial fuel from the Plaintiff (the “Goods”).

11.3 In purchasing the Goods, the 1st Defendant had requested prompt delivery of the Goods within stipulated time periods. However, the Plaintiff had failed and/or neglected to promptly deliver the said Goods within the stipulated time periods. Among others:

11.3.1 The 1st Defendant ordered Goods from the Plaintiff by way of a Purchase Order dated 26.09.2022, and had stated that the Goods ordered therein had to be supplied by 27.09.2022;

11.3.2 Despite accepting the said Purchase Order, the Goods ordered pursuant to the same were only delivered by the

11.3.3 As a result of the above, works at the Project sites suffered delays since May 2022.

11.4 The 1st Defendant had made various phone calls to inform and complain the same (sic) to the Plaintiff. Among others, the 1st Defendant had made phone calls to the Plaintiff’s Mr Wong on 3.12.2022 regarding the defective Goods received.

11.5 The Goods supplied by the Plaintiff were defective. In this regard:

11.5.1 The Goods supplied by the Plaintiff were not of the quality ordered by the 1st Defendant and/or contained impurities;

11.5.2 As a result, the 1st Defendant’s equipment and machineries were damaged, and have to be repaired or replaced; and

11.5.3 The said damage done to the 1st Defendant’s equipment and machineries further delayed the 1st Defendant’s works in the said Projects.

11.6 On 6.10.2022, the 1st Defendant wrote to the Plaintiff informing it of the defective Goods. The Plaintiff had to date refused and/or failed to respond to the same.

11.7 The 1st Defendant has suffered losses including but not limited to:

11.7.1 Liquidated Ascertained Damages;

11.7.2 Potential penalties imposed on the 1st Defendant by

11.7.3 Costs to repair and/or replace the 1st Defendant’s equipment and machineries, which are currently as follows: a. Costs of RM 150,100.00 to repair the equipment and machineries; and b. A sum of RM 134,000.00 being costs to rent equipment and machineries from SCM Heavy Machinery Sdn Bhd during October and November 2022, to temporarily replace the 1st Defendant’s said damaged equipment and machineries.

11.8 Based on the matters stated above, the 1st Defendant has a valid defence of set-off and/or a counterclaim against the Plaintiff.

11.9 The 2nd and 3rd Defendants’ liability (if at all any) are subject to the Plaintiff first proving its claim against the 1st Defendant, which is subject to the 1st Defendant’s defence of set-off and/or counterclaim, as well as the said scheme of arrangement.

11.10 As such, there is currently no actionable debt owed by the 1st Defendant to the Plaintiff, and therefore no liability attaches to the 2nd and 3rd Defendants. [12] After considering the rival position of the parties, in effect, the issues to me are:

12.1 Whether the Plaintiff must first establish its claim against the 1st Defendant for the purported debt before 2nd and 3rd Defendants can be made liable as guarantors;

12.2 Whether the guarantee is enforceable due to existence of the Restraining Order which restrains all civil proceedings against the 1st Defendant due to its pending scheme of arrangement with its creditors?

12.3 Whether the Plaintiff delayed in delivery of goods?

12.4 Whether defective goods were supplied to the 1st Defendant entitling the 1st Defendant to a set off? S/N SlZ7QyrcBUKkeavsTZw56g Law on Summary Judgment Applications [13] As to the Court’s function in hearing an application under Order 14, it will be useful to recall the authoritative pronouncements of the Federal Court in National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300; [1984] 2 CLJ 220: “We think it appropriate to remind ourselves once again that in every application under Order 14 the first considerations are (1) whether the case comes within the Order and (b) whether the Plaintiff has satisfied the preliminary requirements for proceeding under Order 14. For the purposes of an application under Order 14 the preliminary requirements are:

the Defendant must have entered an appearance;

(ii) the statement of claim must have been served on the defendant; and

(iii) the affidavit in support of the application must comply with the requirements of Rule 2 of the Order 14. It is to be observed that a case is not within Order 14 (a) where no statement of claim has been served on the defendant; (b) where the indorsement on the writ includes a claim or claims outside the scope of Order 14 as coming within Rule 1(2); (c) where the affidavit in support of the application is defective, e.g. in omitting to state the deponent's belief that there is no defence to the claim or part to which the application relates; (d) where the application is made in an action against the Government [Order 73 Rule 5(1)]. If the Plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If, however, these considerations are satisfied, the Plaintiff will have established a prima facie case and he became entitled to judgment. The burden then shifts to the defendant to satisfy the Court why judgment should not be given against him [see Order 14 Rules 3 and 4(1)].” S/N SlZ7QyrcBUKkeavsTZw56g [14] It is important to be reminded that in an O.14 ROC 2012 application for summary judgment, the Court must look at the matter as a whole, and ask itself whether the defendant has satisfied the Court that there is an issue or question in dispute which ought to be tried, and if he cannot, he has to show there ought for “some other reason to be a trial” of that claim or part of the claim pursuant to O. 14 r. 3(1) ROC 2012. [15] Where a defendant is able to demonstrate facts to show that he has raised a defence or reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence, he ought to be given leave to defend. This discretion lies with the judge. [16] It is also to be borne in mind that the defendant must raise an arguable issue that requires a trial in order to determine it: Voo Min En & Ors. v Leong Chung Fatt [1982] 2 MLJ 241. [17] In Bank Negara Malaysia v Mohd Ismail Ali Johor & Ors [1992] 1 MLJ 400, the Supreme Court succinctly summarized the approach to be taken in dealing with the affidavits: “Under O. 14 when a fact is asserted by one party and denied by another, and such denial is equivocal or lacking in precision or is inconsistent with undisputed contemporary documents or other statement by the same deponent or is inherently improbable in itself, the judge has a duty to reject such assertion or denial, thereby rendering the issue as not triable. In our opinion, unless this principle is adhered to, a Judge is in no position to exercise his discretion judicially under an O.14 application. Thus, apart from identifying the issues of fact or law, the Court must go one step further and determine whether they are triable. This principle is S/N SlZ7QyrcBUKkeavsTZw56g sometimes expressed by the statement that a complete defence need not be shown. The defence set up need only show that there is a triable issue. Where the issue raised is solely a question of law without reference to any facts or where the facts are clear and undisputed, the court should exercise its duty under O 14. If the legal point is understood and the court is satisfied that it is unarguable, the court is not prevented from granting a summary judgment merely because 'the question of law is at first blush of some complexity and therefore takes a little longer to understand'. (See Cow v Casey 6 and European Asian Bank AG v Punjab & Sind Bank 7 at p 516.)” [18] The principle governing the exercise of power under O.14 of the Rules of Court 2012 was stated in Jacobs v Booth Distillery Co. [1901] 85 LT 262 where Halsbury LC observed: “People do not seem to understand that the effect of Order 14 is that, upon the allegation of the one side or the other, a man is not to be permitted to defend himself in court; that his rights are not to be litigated at all. There are something too plain for argument; and when there were pleas put in simply for the purpose of delay which only added to the expense, and where it was not in aid of justice that such things should continue, Order 14 was intended to put an end to that state of things, to prevent sham defences, from defeating the right of parties by delay, and at the same time causing great loss to the Plaintiff s who were endeavouring to enforce their rights. “ [19] In Southern Finance Bhd v Sun City Development Sdn Bhd & Anor [2006] 7 CLJ 464, it was held: “The general principle is where a Defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence he ought to be given leave to defend (Saw v.Hakim S/N SlZ7QyrcBUKkeavsTZw56g 5 TLR 72). A Defendant should not be shut out from defending unless it is very clear indeed that he has no case in the action under discussion (Sheppards v. Wilkinson 6 TLR 13). The power to give summary judgment under O. 14 is “intended only to apply to cases where there is no reasonable doubt that a Plaintiff is entitled to judgment and where therefore it is inexpedient to allow a Defendant to defend for mere purposes of delay”. (Jones v.Stone [1894] AC 122). Where there is any serious conflict to matters of fact or where any real difficulty as to matters of law arises, summary judgment under O. 14 should not be granted. (Electric and General Corpn. v.Thomson-Houston Electric 10 TLR 103). But, however difficult the point of law is, once it is understood and the Court is satisfied that it is really unarguable it will give final judgment (Cow v. Casey [1949] 1 KB 481). (See Percetakan Solai Sdn Bhd v. Kin Kwok Daily News Sdn Bhd & Anor [1985] CLJ (Rep) 632 at p. 637).” [20] The Defendants need only raise one triable issue to be given leave to defend — South East Asia Insurance Bhd v Kerajaan Malaysia [1996] MLJU 642; [1998] 1 CLJ 1045; HSBC Bank Malaysia Bhd v Ng Tien Beng & Ors [2008] 9 CLJ 631; Stamford College Bhd v Iris Corp Bhd [2014] 8 MLJ 178. [21] Following the requirements set out in the Federal Court decision in National Company for Foreign Trade (supra), I find on the facts of this case, the Plaintiff has satisfied the preliminary requirements that the Order 14 application has been properly filed. The burden has then shifted to the Defendants to satisfy the Court why judgment should not be given against them. S/N SlZ7QyrcBUKkeavsTZw56g Findings and Decision of this Court [22] Having addressed Enc. 15 with the foregoing legal principles in mind, and examined in detail the affidavits to see if 'there is a fair or reasonable probability of the 2nd and 3rd Defendants having a real or bona fide defence’, I find that the issues raised by the 2nd and 3rd Defendants are not triable issues or issues which warrant a trial. This Court finds that the Plaintiff’s claim is clearly incontestable and that it is a suitable case to be disposed of summarily (see Bank Negara Malaysia v Mohd Ismail (supra). [23] I deal with the issues raised by the Defendants. Triable issues? Whether the Plaintiff must first establish its claim against the 1st Defendant for the purported debt before 2nd and 3rd Defendants can be made liable as guarantors [24] I find this postulation of the 2nd and 3rd Defendants to be absolutely bereft of merits. [25] In advancing the above argument, it appears to me with utmost respect that there is misapprehension on the part of the 2nd and 3rd Defendants’ counsel on the significance of the principal debtor clause in the guarantee. In clause 1 of the guarantee, the 2nd and 3rd Defendants “jointly and severally guarantee as Principal Debtors and not merely as sureties the payment on demand of all outstanding sums due and owing by the Customer to you whether certain or contingent now or hereafter owing or incurred by the Buyer on any account or S/N SlZ7QyrcBUKkeavsTZw56g in any manner together with all interest, costs and charges including legal charges and expenses which you may incur in enforcing payment for the outstanding sum due to you from the Customer.” [26] In Credit Corporation (M) Berhad v Choi Sang & Anor [1989] 1 CLJ (Rep) 440, Siti Norma Yaakob J (as she then was) observed: “The law on the effect of the presence of a principal debtor clause in a guarantee is clear in that it obviates the necessity of a creditor to make a demand. This is so as a guarantee is a collateral agreement and before being sued, it is only right and just that a demand be made on the guarantor. However, the character of the guarantee changes where there is also included a principal debtor clause in the body of the guarantee. The guarantee is no longer a collateral agreement and as such there is no need for a demand as the issuance of the writ is a demand in itself. …” [27] This Court in giving Clause 1 of the guarantee its ordinary meaning, the effect is that the 2nd and 3rd Defendants have undertaken as principal debtors, a primary obligation to pay the Plaintiff. Their liability as such is not dependent on the liability of the 1st Defendant for they are principal debtors themselves. If this Court should accept the contention by the 2nd and 3rd Defendants that liability must first be established against the 1st Defendant, this would defeat or override the very purpose and intention of Clause 1 of the Guarantee which is to make the them principal debtors for all money guaranteed and recoverable from them as though each guarantor is a principal debtor. S/N SlZ7QyrcBUKkeavsTZw56g Whether the guarantee is enforceable due to existence of the Restraining Order which restrains all civil proceedings against the 1st Defendant due to its pending scheme of arrangement with its creditors? [28] I find it does not matter one whit that due to the Restraining Order, the Plaintiff cannot proceed against the 1st Defendant. This is because the 2nd and 3rd Defendants as Primary Debtor under the guarantee, have a primary liability to the Plaintiff to pay the outstanding sums owed by the 1st Defendant. In my considered view, due to the Principal Debtor clause in the guarantee, it is not a sine qua non for the Plaintiff to first establish its claim against the 1st Defendant for the outstanding sums before making the 2nd and 3rd Defendants liable for the guaranteed amount. Their liability is a primary liability, not a secondary liability. [29] The effect of a “principal debtor clause” has been explained by the Federal Court in Andrew Lee Siew Ling v. United Overseas Bank (M) Bhd [2012] 3 CLJ 708; [2012] 3 MLJ 449, at 459 and 460 where it was held as follows: "It is our considered view that in the present case the appellant, being a person who has given a guarantee and more importantly an indemnity, is primarily liable for losses which the principal borrower could not have been made liable. His liability is not dependent or secondary to the liability of the principal borrower. He is a principal debtor himself. The liability under a contract of indemnity does not depend on whether the principal debt is enforceable. It has no reference in law to the obligation of any third person. In essence, the liability of the person who has given an indemnity can be more extensive than that of the liability of the principal borrower (see the cases of (1) Yeoman Credit Ltd v. Latter & Anor [1961] 2 All ER 294 and (2) Chung Khiaw Bank Ltd v. Soi Huan & Ors [1985] 1 LNS 71; [1986] 1 MLJ 188)."(Emphasis added). S/N SlZ7QyrcBUKkeavsTZw56g [30] Added to that, the very wording of s. 386 (6) (b) Companies Act 2016 puts paid the 2nd and 3rd Defendants’ posit. The section reads: “368 Power of Court to restrain proceedings ………

An order made by the Court under subsection (1) shall not have the effect of restraining- …..

further proceedings in any action or proceeding against any person including the guarantor of the company but does not include the company that had applied for the restraining order.” Whether the Plaintiff delayed in delivery of goods? and Whether defective goods were supplied to the 1st Defendant entitling the 1st Defendant to a set off? [31] The only probable complaint of delay in delivery relates to a single purchase order dated 26.09.2022 received at 3.55 p.m. The said purchase order in exhibit "CWH-1 provides the terms of supply is "CASH". The WhatsApp conversation between the Plaintiff and 1st Defendant’s personnel in exhibit “P8” shows payment was made by the 1st Defendant on 28.9.2022 and payment having been made was informed to the Plaintiff at 4.54 pm. The very next day, on 29.9.2022, the Plaintiff supplied the goods which the 1st Defendant received on the same day. I do not find there is any delay at all. In an attempt to create an issue of delay (not that such a complaint would hold water as based on chronology of events, such a complaint is inherently improbable), the 2nd and 3rd Defendants produced the 1st Defendant’s letter dated 6.10.2022 purportedly complaining about the delay but, although challenged to produced evidence of S/N SlZ7QyrcBUKkeavsTZw56g delivery of such a letter to the Plaintiff was unable to do so. A bare assertion of late delivery does not constitute evidence and cannot give rise to a triable issue - Chen Heng Ping @ Tian Seow Hock & 5 Ors v. Intradagang Merchant Bankers

(M) Berhad [1995] 3 CLJ 690. The Plaintiff on the other posited that no complaint of delay was raised prior filing of defence. I note of course the close proximity that this alleged letter bear to the Plaintiff’s 2nd letter of demand dated 21.10.22 and am of the view that the complaint of delay is an afterthought, and a desperately misconceived one at that. There is no contemporaneous record of any previous complaints other than the alleged complaint concerning the September 2022 supply which I find does not bite. Applying the approach in Bank Negara (supra) at para 17 above which is binding on this Court, I have a duty to reject such an assertion, thereby rendering the issue as not triable. [32] As for the allegation that that some fuel supplied were of defective quality and as a result, the 1st Defendant’s machineries were affected and it allegedly had to incur costs to rent machines and buy other fuel thereby entitling the 1st Defendant to a set off or counterclaim, I find such a contention is as hollow as a beetle infested tree trunk:

32.1 Firstly, each delivery order bears the 1st Defendant’s acknowledgment “Received above Products in Good Condition,

32.2 Second, each monthly statement of accounts was endorsed with a statement that any discrepancy in the amounts owed is to be reported to the Plaintiff within 7 days; The 1st Defendant did not, S/N SlZ7QyrcBUKkeavsTZw56g neither did the 2nd and/or 3rd Defendant send the Plaintiff any notice of discrepancy within the stipulated period;

32.3 Third, it is confounding that after the 1st letter of demand dated 25.7.2022 was sent to all 3 Defendants, the 1st Defendant made two part payments - on 5.8.2022 of a substantial sum of RM782,308.80 and again on 5.9.22, a sum of RM 19,874.40. Even when the new purchase order was placed in September 2022, payment of the same in the sum of RM19,656.00 was made in cash as insisted by the Plaintiff, the Defendants did not take exception to the contents of the 1st letter of demand; there was nary a whisper of protest that there was late delivery and/or that fuel supplied were defective; the Defendants kept silent that the machineries were affected and the Defendants had to incur costs to rent machines and buy other fuel. The abject failure to state that these payments were made without prejudice, or that the Defendants reserved their rights for late delivery and/or for supply of defective fuel underscored the futility of raising these complaints now, and attracts the principle in Wong Hon Leong David v Noorazman bin Adnan [1995] 3 MLJ 283; [1995] 4 CLJ 155 CA and affirmed by the Federal Court in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453 FC at page 478: “...It is the ordinary nature of businessman to immediately refute any proposition injurious to him contained in letters and not to let it stand (see David Wong Hon Leong v. Noorazman Adnan [1995] 4 CLJ 155)”.

32.4 Fourth, that the above part payments were made as reflected in the monthly statement of accounts reduced the principal sum outstanding to the Plaintiff to RM1,364,462.00 were not denied by the 2nd and 3rd Defendants. Part payments amount to an admission of the debt - CCG Concrete Constructions (M) Sdn Bhd v Rich Avenue Sdn Bhd [2000] 7 MLJ 46 and Kris Heavy Engineering & Construction Sdn Bhd v Lewis & Co [2017] MLJU 906;

32.5 Fifth, the complaint of defective fuel supplied alleged for the first time in writing in the Defence makes it ‘as clear as day’ to this court in the circumstances, that it was made as an afterthought, to obfuscate and detract from the real issues, and not credible at all. There is also a woeful omission to show that costs were indeed incurred for repairs to machineries that were allegedly affected by defective fuel and rentals for machinery. Mere quotations produced by the Defendant in my view do not amount to concrete or credible evidence, and thus incapable of proving that such costs were indeed incurred. [33] Simply put, from the two preceding paragraphs, there exist here overwhelming evidence that the Defendants kept a deafening inelegant silence, on top of that, making sizeable part payments to boot instead of raising immediately that defective fuel was supplied and/or dispute the amount claimed by the Plaintiff in its invoices and/or statement of account expeditiously and vigorously can only lead to an inference that the issues now raised demonstrate a lack of bona fides, and are stratagems employed to delay payment. As such, S/N SlZ7QyrcBUKkeavsTZw56g it is deemed that the 1st Defendant has accepted the amount claimed by the Plaintiff is correct and accurate, and the 2nd and 3rd Defendants are liable as principal debtors for the amount claimed. They are also estopped from asserting that the amount claimed is not due. See: i. Boustead Trading Sdn Bhd-v-Arab-Malaysian Merchant Bank Berhad [1995] 3 MLJ 331; [1995] 4 CLJ 283 FC at pages 284 and 285, where the Federal Court held that: “[6] Justice of the present case clearly lies in favour of considering the estoppel issue. At the time it received the said invoices of Chemitrade bearing the indorsement specifying the 14-day limit for objection, the appellant had a choice. It could have told the respondent that the 14- day limit was not part of the original arrangement, that it amounted to an abrogation of its rights and that it was not prepared to be bound by the limitation. But it did nothing of the sort. It did not however merely remain silent, for thereafter it actually made payments to those very invoices without any protest. [7] A reasonable man similarly circumstanced as the respondent would have been entitled to assume, as the respondent did, that the appellant was agreeable to the imposition of the 14-day limit. The respondent was clearly influenced by the conduct of the appellant when it paid Chemitrade for those very invoices, and this the respondent would not have done had the appellant protested. The appellant’s attempt to raise this point some seven months later, must be classified as unconscionable and inequitable conduct. It ought not therefore to be permitted to question the validity of the indorsement. [8] The appellant should be estopped from asserting that nothing was due on the impugned invoices. It was the appellant’s silence during the S/N SlZ7QyrcBUKkeavsTZw56g 14-day period that led the respondent to make the payment that was due to Chemitrade. The respondent was therefore entitled to assume that the invoices were good for payment. It would be most unjust for the appellant to now suggest that the respondent ought not to have paid on the disputed invoices. (Emphasis added)” ii. MP Factors Sdn Bhd v Suang Yan Projects Sdn Bhd & Ors [2007] 8 MLJ 602 [HC]: Page 613 “It is an undisputed fact that after being served with the notice to repurchase, the defendants did not at any time raise any protest that the amount demanded is incorrect or that no amount is due and payable to the plaintiff under the agreement. Thus, by the defendants' silence they are estopped from now raising this challenge as the plaintiff was lulled into the belief that the defendants did not intend to challenge the existence of a demand to repurchase the debt, or the correctness of the amount owed by the defendants under the Factoring Agreement.” Page 615 “Each of the invoices also bear a clear statement that any objection to the bills or its items must be notified to them in writing within 14 days of its receipt, failing which the bills would be deemed final and conclusive against the main contractor. Consequently, these invoices are deemed good for payment as there was no objection from the main contractor within the stipulated period. More importantly, the plaintiff had acted to its detriment in releasing the initial payments to the first defendant based on the aforesaid invoices. The defendants ought now to be estopped from stating that they do not owe the plaintiff the sum S/N SlZ7QyrcBUKkeavsTZw56g claimed or any other sums (see Boustead Trading (1985) SdnBhd v Arab Malaysian Merchant Bank SdnBhd [1995] 3 MLJ 331; Hong Leong Leasing SdnBhd v Far East Knitting Sdn Bhd [1996] 2 MLJ 251; Chong Yoong Choy v UOL Factoring SdnBhd [1996] 2 CLJ 605 ). It is also of material bearing to note that the defendants failed to condescend upon any particulars as to the basis of their dispute on the sums claimed by the plaintiff. And, neither did they show in any manner, any manifest error on the face of the Certificate of Indebtedness. Hence, they are bound by the contents of the Certificate (see Chen Heng Ping &Ors v Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363).” (Emphasis added) iii. HTC GLOBAL SERVICES MSC SDN BHD v KOMPAKAR EBIZ SDN BHD [2008] 1 LNS 419 [HC]: “On each and every invoice in Exhibit "S-1" of Enclosure 8, there is a clear statement "Any discrepancies in the invoices should be informed to us within 7 days from the invoice date." There was no protest after the invoices were issued and received by the defendant. See MP Factors Sdn Bhd v. Suangyan Projects Sdn Bhd & 3 Ors [2006] 1 LNS 358; [2007] 4 AMR 327 applying the Federal Court case of Boustead Trading (1985) SdnBhd v. Arab-Malaysian Merchant Bank SdnBhd [1995] 4 CLJ 283; [1995] 3 AMR 2871 per Gopal Sri Ram JCA co-opted at page 336: Each of the invoices also bear a clear statement that any objection to the bills or its items must be notified to them in writing within fourteen (14) days of its receipt, failing which the bills would be deemed final and conclusive against the main contractor. Consequently, these invoices are deemed good for payment as there was no objection from the main contractor within the stipulated period. More importantly, the plaintiff had acted to its detriment in releasing the initial payments to the first defendant based on the aforesaid invoices. The defendants ought now to be estopped from stating that they do not owe the plaintiff the sum claimed or any other sums. S/N SlZ7QyrcBUKkeavsTZw56g ……….. The law is clear. Where a party fails to raise any objection on the invoice of which they have been served relating to any contract it is to be estopped from denying that payment is due from them. See Syarikat Pakar Kayu dan Perdagangan Sdn Bhd v. Maa-sk Sdn Bhd [1986] CLJ 694 (Rep); [1986] 1 CLJ 595; MP Factors Sdn Bhd v. Suangyan Projects Sdn Bhd & 3 Ors [2006] 1 LNS 358; [2007] 4 AMR 327. Similarly, with respect to the third contract which is oral in nature, it is the duty of the defendant to object to the invoices that had been issued and received by them and having failed to do so the same principle of estoppel will apply.” (Emphasis added) [34] As for interest of 1.5% per month charged on overdue invoices, it is noteworthy that not only was this rate of interest set out in Clause 11 (b) of the credit application signed by both 2nd and 3rd Defendants; additionally, each and every invoice and delivery order embodied a statement that entitled the Plaintiff to so charge. There was no objection throughout the course of the parties’ dealings. It is abundantly clear to this Court that the Plaintiff is entitled to such interest, see Woon Hoe Kan & Sons Sdn Bhd v Bandar Raya Developments Bhd [1974] 1 MLJ 24 FC; Boustead Trading supra where Chemitrade did not protest on the interest; Perangsang Dagang Sdn Bhd v Tanjung Teras Sdn Bhd and Others [2007] MLJU 716; Caltex Oil Malaysia Ltd v Classic Best Sdn Bhd & Ors [2007] 4 MLJ 772, Daya Anika Sdn Bhd v Kuan Ah Hock [1998] 6 MLJ 537; Tansa Enterprise Sdn Bhd v Temenang Engineering Sdn Bhd [1994] 2 MLJ 353. S/N SlZ7QyrcBUKkeavsTZw56g [35] In the round, I am satisfied that no bona fide triable issue has been raised by the 2nd and 3rd Defendants; nor did they show there is “some other reason for trial” pursuant to Order 14 rules 3(1). It is my considered view that a trial will not throw any further light on the matter as all the issues canvassed in the application before the Court are clear, and can be decided once and for all without going to trial. An admitted claim as evidenced by the substantial part payments, does not call for it to be settled by trial, neither should the Plaintiff be put through the costly process of a full trial in the circumstances as obtained here. In this regard, I recall the crisp and well-expressed reminder of Vincent Ng J in Suppuletchimi v Palmco Bina Sdn Bhd [1994] 2 MLJ 368: “.. No party in a proceeding is entitled to require the court to accord them valuable time of several days open court viva voce trial only upon mere or bare assertions in their affidavits…” [36] The 2nd and 3rd Defendants have no defence to the Plaintiff’s claim. I have is no reasonable doubt that the Plaintiff is entitled to judgment. [37] For reasons given, I therefore exercised my discretion to enter summary judgment as prayed by the Plaintiff with costs subject to allocator. Dated: 9th May 2023 -sgd- ……………………….. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur S/N SlZ7QyrcBUKkeavsTZw56g COUNSEL: For the Plaintiff : Saroop Rampal (together with him, Aimi Dalila) Messrs Norendra & Yap For the 2nd and 3rd Defendants : Clinton Tan (together with him, Yeo Sher Minn (PDK) and Sam Pui San (PDK)) Messrs Clinton Tan CASES REFERRED: National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300; [1984] 2 CLJ 220 Voo Min En & Ors. v Leong Chung Fatt [1982] 2 MLJ 241 Bank Negara Malaysia v Mohd Ismail Ali Johor & Ors [1992] 1 MLJ 400 South East Asia Insurance Bhd v Kerajaan Malaysia [1996] MLJU 642; [1998] 1 CLJ 1045 HSBC Bank Malaysia Bhd v Ng Tien Beng & Ors [2008] 9 CLJ 631 Stamford College Bhd v Iris Corp Bhd [2014] 8 MLJ 178 Credit Corporation (M) Berhad v Choi Sang & Anor [1989] 1 CLJ (Rep) 440 Andrew Lee Siew Ling v. United Overseas Bank (M) Bhd [2012] 3 CLJ 708; [2012] 3 MLJ 449 Chen Heng Ping @ Tian Seow Hock & 5 Ors v. Intradagang Merchant Bankers

(M) Berhad [1995] 3 CLJ 690 Wong Hon Leong David v Noorazman bin Adnan [1995] 3 MLJ 283; [1995] 4 CLJ 155 Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453 S/N SlZ7QyrcBUKkeavsTZw56g Boustead Trading Sdn Bhd-v-Arab-Malaysian Merchant Bank Berhad [1995] 3 MLJ 331; [1995] 4 CLJ 283 MP Factors Sdn Bhd v Suang Yan Projects Sdn Bhd & Ors [2007] 8 MLJ 602 HTC Global Services MSC Sdn Bhd v Kompakar Ebiz Sdn Bhd [2008] 1 LNS 419 CCG Concrete Constructions (M) Sdn Bhd v Rich Avenue Sdn Bhd [2000] 7 MLJ 46 Kris Heavy Engineering & Construction Sdn Bhd v Lewis & Co [2017] MLJU 906 Woon Hoe Kan & Sons Sdn Bhd v Bandar Raya Developments Bhd [1974] 1 MLJ 24 Perangsang Dagang Sdn Bhd v Tanjung Teras Sdn Bhd and Others [2007] MLJU 716 Caltex Oil Malaysia Ltd v Classic Best Sdn Bhd & Ors [2007] 4 MLJ 772 Daya Anika Sdn Bhd v Kuan Ah Hock [1998] 6 MLJ 537 Tansa Enterprise Sdn Bhd v Temenang Engineering Sdn Bhd [1994] 2 MLJ 353 Suppuletchimi v Palmco Bina Sdn Bhd [1994] 2 MLJ 368 LEGISLATION/STATUTE: Order 14 of the Rules of Court 2012 Section 386 (6) (b) Companies Act 2016